in the Interest of J.F. II, a Child ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-19-00174-CV
________________________
IN THE INTEREST OF J.F. II, A CHILD
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2017-527,563; Honorable John J. McClendon III
November 6, 2019
OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, B.T., presents two issues challenging the trial court’s order terminating
her parental rights to her son, J.F. II.1 First, she maintains the associate judge erred when
she did not appoint counsel to represent her and erred again by allowing retained counsel
to withdraw a week prior to commencement of the trial on the merits in violation of Rule
1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West Supp. 2018). See also TEX. R. APP. P. 9.8(b). The father’s parental rights
were also terminated; however, he did not appeal.
10 of the Texas Rules of Civil Procedure.2 By her second issue, B.T. alleges that failure
to appoint counsel for the trial on the merits resulted in due process violations that were
not cured by the appointment of counsel for the de novo hearing. We reverse and
remand.
BACKGROUND
B.T. has a history of methamphetamine use. She suffers from multiple ailments
and takes numerous medications. She has been diagnosed with bipolar disorder, anxiety,
asthma, migraines, seizures, polycystic ovarian syndrome (insulin resistance) and has a
pituitary tumor. During her testimony, B.T. described at least ten medications that she
had been prescribed for her ailments.
When J.F. II was born in October 2017, the Texas Department of Family and
Protective Services was notified that he tested positive for amphetamines. Two days
after his birth, the Department filed its petition for his protection, as well as for
conservatorship and for termination of B.T.’s parental rights.
On November 1, 2017, B.T. filed her Application for Appointment of Attorney &
Affidavit of Indigence. That same day, the trial court (a former associate judge) signed
an order finding that B.T. was indigent and appointed counsel to represent her. On March
12, 2018, B.T. chose to retain a family lawyer and filed a Motion to Substitute Counsel.
2 Initially, this appeal was filed pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967), as having no merit. This court concluded there were arguable issues presented and
abated the appeal and remanded the cause to the trial court for appointment of new counsel. See In re
J.F. II, No. 07-19-00174-CV, 2019 Tex. App. LEXIS 6811, at *6-7 (Tex. App.—Amarillo Aug. 6, 2019, order).
2
Citing B.T.’s failure to cooperate, on August 15, 2018, retained counsel moved to
withdraw.
No order appears in the clerk’s record granting the motion to withdraw. At the
commencement of the trial on the merits on September 14, 2018, B.T. requested a court-
appointed attorney and moved for a continuance. She announced that she needed a
continuance to “get an attorney. I need a court-appointed one, if you can.” The trial court
indicated there had been a hearing on retained counsel’s motion to withdraw just a week
earlier on September 7, 2018, at which B.T. was not present. The trial court then asked
B.T. if she would “have been asking the Court to release [retained counsel] or would [she]
have been asking the Court to keep him on as [her] attorney?” She answered, “[r]elease.”
The trial continued with the Department and attorney ad litem for the child both
opposing a continuance based on the child’s need for permanence. B.T.’s verbal motion
for continuance as well as her request for court-appointed counsel were denied. She
proceeded pro se at the trial on the merits.
Before the presentation of testimony, the parties discussed with the trial court a
pending approval of a home study related to the child’s foster placement with a relative in
Oklahoma. With a dismissal date of October 8, 2018 looming, the trial court granted a
recess until September 28, 2018, to resolve the child’s placement.
When the trial resumed on September 28th, the Department announced, “present
and ready to proceed . . . .” B.T. again moved for a continuance and was advised by the
trial court to announce her name “but state not ready,” and B.T. complied. She explained
that she had attempted to retain counsel but did not have the financial resources for fees
3
being quoted to her by several attorneys. She also sought the assistance of Legal Aid
and the Texas Tech Law School Clinic but was denied assistance. The day before the
trial had resumed, B.T. again filed paperwork establishing her indigence as well as
requesting the appointment of counsel. The trial court acknowledged the filing but
deferred ruling on the request for counsel. The Department again opposed a continuance
and eventually, the trial court again denied B.T.’s motion for continuance. The court also
ruled, “[y]our request for additional time to get a court-appointed or hired attorney is also
denied.”
The trial continued with B.T. as the first witness. Without any legal representation,
she answered questions from three attorneys. After the presentation of witnesses and
evidence, the trial court again ruled that B.T.’s motion for continuance as well as her
request for an extension of the dismissal date were denied. The ruling continued as
follows:
[f]urther, [B.T.] had again applied for a court-appointed attorney. I find that
that is her second request for court-appointed attorney, having released her
first one, and then had representation by a hired attorney, who has now
since withdrawn. I am denying her request for that second court-appointed
attorney as untimely. I believe it was the day prior to the final hearing when
that application was received.
(Emphasis added).3
After another recess, the last day of trial resumed on October 19, 2018. B.T. was
not present. According to the record, she was on her way to the trial when she passed
3 Rule 145 of the Texas Rules of Appellate Procedure which governs the procedure for a party who
files a Statement of Inability to Afford Payment of Court Costs does not provide a deadline for the filing of
the pertinent documents. TEX. R. CIV. P. 145.
4
out and was taken to the emergency room by a friend. B.T. sent her friend to the
proceedings to advise the trial court that she was hospitalized and unable to attend.
Without counsel or an advocate to represent B.T., the trial court announced, “[w]e are
going to go on without her.”
The trial continued with the caseworker and two other witnesses testifying for the
Department. The foster mother also testified telephonically. Their testimonies were not
subjected to cross-examination by B.T. or an advocate for B.T.
Based on the Department’s case, the trial court found clear and convincing
evidence to support termination of B.T.’s parental rights for (1) knowingly placing or
allowing her child to remain in conditions or surroundings that endangered his physical or
emotional well-being, (2) engaging in conduct or knowingly placing her child with persons
who engaged in conduct that endangered his physical or emotional well-being, and (3)
failing to comply with the provisions of a court order that specifically established the
actions necessary for her to obtain the return of her child. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D), (E), (O) (West Supp. 2019). The trial court also found that termination
of B.T.’s parental rights to J.F. II was in his best interest. § 161.001(b)(2). Finally, the
trial court found that B.T. failed to provide by a preponderance of the evidence any
explanation as to why she was unable to comply with the provisions of the court order, or
whether she had made a good faith effort to comply and why the failure to comply was
not her fault. § 161.001(d).
5
B.T. filed a request for a de novo hearing before the referring court. In her written
request, she listed her issue as the lack of representation at the trial on the merits and
explained that she was absent on the final day because she had been hospitalized.
The de novo hearing commenced on November 19, 2018. B.T. was still without
legal representation and stated, “I don’t know if I can get a lawyer for this . . . I almost
have enough money saved up . . . .” B.T. also requested a continuance, which was again
opposed by the Department and by the attorney ad litem for the child.
The referring court announced that it would be reading the entire record from the
trial and relying on the testimony that had been previously presented.4 Counsel for the
Department added that the caseworker would be providing testimony on the child’s status
and his placement.5
The caseworker testified the child was doing well in his foster home in Oklahoma.
B.T. then attempted to cross-examine her, although inartfully. Numerous objections to
B.T.’s questions were sustained. After cross-examination of the caseworker, the de novo
hearing was recessed pending preparation of the reporter’s record from the trial on the
merits.
4 The reporter’s record was not yet transcribed but the referring court expressed its intent to read it
in its entirety once prepared. Section 201.015(c) of the Family Code authorizes the referring court to
consider the record from the hearing before the associate judge. TEX. FAM. CODE ANN. § 201.015(c) (West
Supp. 2019).
5 We note that section 201.015(c) of the Family Code provides that in a de novo hearing, witnesses
may testify on the issues specified in the request—here the denial of counsel at the trial on the merits—in
addition to consideration by the referring court of the record from the trial on the merits. The statute does
not address presentation of new evidence unrelated to the issues raised by the party seeking de novo
review.
6
More than three months later, on February 27, 2019, the de novo hearing resumed.
The referring court announced that it had read the transcription from the trial on the merits.
The court also stated that B.T. had been arrested the night before for various traffic
violations. She had been transported to the holding area to await continuation of the de
novo hearing when she experienced medical problems that required hospitalization. The
de novo hearing was continued and the trial court declared, “[i]t is going to be my intent
to appoint [B.T.] an attorney, so I’ll give that attorney an appropriate amount of time to get
prepared.” The hearing was recessed and counsel was appointed that same day to
represent B.T.
Several months later, on May 16, 2019, the de novo hearing resumed, this time
with court-appointed counsel representing B.T. The referring court made known that it
had read and would be considering the reporter’s record from the trial on the merits.
Noting that B.T. was without counsel at the previous de novo hearing, the referring court
notified the parties that “we’ll treat it as if we’re pretty much starting over” and allowed the
Department to re-open its evidence. The Department offered into evidence Petitioner’s
Exhibit 1, six volumes from the trial on the merits. The exhibit was admitted without
objection.
B.T.’s counsel re-urged B.T.’s motion for continuance and for an extension of the
case deadline to give B.T. the opportunity to work her services guided by the assistance
of counsel. The motion was denied and the de novo hearing continued. The Department
presented the caseworker who testified regarding medical issues the child had developed
since his placement. She also offered testimony regarding plans for the foster parent to
adopt the child. B.T.’s drug use was also revisited as the reason for the child’s removal.
7
B.T. was the only witness in her defense. She admitted being a drug addict but
testified she had not used methamphetamine since she had discovered she was pregnant
with J.F II. She disputed the positive drug test results given the various prescription
medications she was taking. She also testified concerning pending criminal charges.
The referring court took the matter under advisement. Subsequently, the trial court
signed an order terminating B.T.’s parental rights on the same statutory grounds that the
associate judge had found.
ISSUE TWO—DENIAL OF THE RIGHT TO COUNSEL
We begin our review with issue two as it is dispositive of this appeal. As noted by
appellate counsel, the record filed in this case “is a nightmare” and the reporter’s record
is “extremely confusing.” The following table sets forth a timeline for the termination
proceedings.
September 14, 2018 Commencement of trial on the
merits without counsel
September 24, 2018 Continuation of trial on the merits
without counsel
October 4, 2018 Continuation of trial on the merits
without counsel
October 19, 2018 Continuation of trial on the merits
without counsel
November 19, 2018 Commencement of de novo
hearing without counsel
February 27, 2019 Continuation of de novo hearing
with appointment of counsel
May 16, 2019 Continuation of de novo hearing
with appointed counsel
8
At issue in this appeal is B.T.’s denial of the right to appointed counsel until
February 27, 2019, sixteen months after J.F. II was removed from B.T.’s care. In
assessing whether B.T.’s fundamental right to be represented by counsel has been
violated in this case, we are mindful that termination cases are to be resolved
expeditiously. TEX. FAM. CODE ANN. § 263.401(a) (West 2019). In light of those
considerations (a parent’s right to counsel and a child’s need for an expeditious resolution
of the proceedings), the history of this case illustrates an unnecessary and harmful delay
in appointing counsel.
APPLICABLE LAW
The bond between a parent and child is not given by law. It is endowed by our
Creator. In re A.M., No. 18-0905, 2019 Tex. LEXIS 1042, at *2 (Tex. Oct. 18, 2019) (citing
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (Blacklock, J., concurring in denial
of petition)). The natural right existing between parents and their children is of
constitutional dimensions. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). See also
Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
Parental rights are sacred; they encompass a value “far more precious than any property
right.” In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) (quoting Santosky, 455 U.S. at 758-
59).
A decree terminating the natural right between a parent and a child “is complete,
final, irrevocable and divests for all time that natural right as well as all legal rights, duties
and powers” between the parent and child. Holick, 685 S.W.2d at 20. In seeking to
permanently sever the parent-child relationship, the trial court must “observe
9
fundamentally fair procedures.” In re E.R., 385 S.W.3d at 555. Consequently, termination
proceedings are strictly construed in favor of the parent. Id. at 563.
Legal representation is a necessity and not a luxury. United States v. Chronic, 466
U.S. 648, 653, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). “Of all the rights that an accused
person has, the right to be represented by counsel is by far the most pervasive for it
affects [the parent’s] ability to assert any other rights [the parent] may have.” Id. at 654.
The complete denial of counsel at a critical stage of a proceeding is unfair and fails to
subject the prosecution’s case to “meaningful adversarial testing . . . .” Id. at 659.
The Texas Family Code mandates that in a government-initiated termination of the
parent-child relationship, an indigent parent who responds in opposition to the termination
shall be provided with appointed counsel. TEX. FAM. CODE ANN. § 107.013(a)(1) (West
2019) (Emphasis added). Once a parent is determined to be indigent for purposes of
section 107.013, the parent is “presumed to remain indigent for the duration of the suit”
unless a motion for reconsideration is filed. § 107.013(e). See In re P.M., 520 S.W.3d
24, 26 (Tex. 2016) (holding that the right to appointed counsel under section
107.013(a)(1) applies to all proceedings, including proceedings in the Texas Supreme
Court).
To trigger the process for mandatory appointment of counsel in a termination
proceeding, a parent must file an affidavit of indigence pursuant to Rule 145 of the Texas
Rules of Civil Procedure. TEX. R. CIV. P. 145. When, as here, an affidavit of indigence is
uncontested, it is conclusive as a matter of law. Pattison v. Spratlan, 539 S.W.2d 60, 61
(Tex. 1976), cert. denied, 429 U.S. 1001, 97 S. Ct. 531, 50 L. Ed. 2d 612 (1976).
10
Rule 145 has no deadline for parents to file the necessary documents to establish
their indigence. Neither does section 107.013 of the Family Code impose a time in which
to appoint counsel for indigent parents. However, given the seriousness of the rights at
stake; In re B.G., 317 S.W.3d 250, 257 (Tex. 2010), a trial court should address a parent’s
affidavit of indigence “as soon as possible—before the next critical stage of the
proceedings . . . .” In re V.L.B., 445 S.W.3d 802, 807 (Tex. App.—Houston [1st Dist.]
2014, no pet.). What then is the “critical stage” in a termination proceeding?
According to In re V.L.B., a hearing, a mediation, a pretrial conference or, in
particular, a trial on the merits, are all critical stages of termination proceedings.
(Emphasis added). See id. See also In re J.O.A., 262 S.W.3d 7, 18 (Tex. App.—Amarillo
2008), modified, 283 S.W.3d 336 (Tex. 2009) (“A critical stage in a termination proceeding
is any stage where substantial rights of the parties may be affected.”).
The Texas Supreme Court recently decided that a de novo hearing pursuant to
section 201.015 of the Texas Family Code is not a true “trial de novo” in the traditional
sense of that term. In re A.L.M.-F., No. 17-0603, 2019 Tex. LEXIS 426, at *12 (Tex. May
3, 2019). “It is a process that is mandatory when invoked but expedited in time frame and
limited in scope.” Id. (Emphasis added). In a de novo hearing, the parties may present
witnesses on the issues specified in the request for the hearing and the referring court
may consider the record from the trial before the associate judge. See In re N.V., 554
S.W.3d 217, 220 (Tex. App.—Amarillo 2018, pet denied).
The commencement of the trial on the merits is the adversarial hearing at which
the governmental entity seeking to terminate the parent-child relationship marshals its
11
proof. Without the guiding hand of counsel to test the Department’s evidence, the
adversarial process is presumptively unreliable. In re J.M.O., 459 S.W.3d 90, 94 (Tex.
App.—San Antonio 2014, no pet.) (citations omitted). The de novo stage of a termination
proceeding is merely a hearing before a different tribunal and not a true “trial de novo”—
a complete retrial on all issues. In re A.L.M.-F., 2019 Tex. LEXIS 426, at *10-12. It is
simply a “mechanism for reviewing an associate judge’s merits adjudications.” Id. at *12.
As such, a de novo hearing may actually be less important than the trial on the merits
before the associate judge in those situations where an adversarial hearing has taken
place and an order terminating parental rights has been entered.
ANALYSIS
B.T. asserts her due process rights were violated by the denial of appointed
counsel at the trial on the merits. That error, she maintains, was not cured when counsel
was later appointed for the continuation of the de novo hearing. We agree.
Initially, we address the Department’s argument that B.T. waived her right to
counsel. While this court acknowledges that preservation rules apply to parental
termination cases and complaints based on constitutional error; In re K.A.F., 160 S.W.3d
923, 928 (Tex. 2005) (citing In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003)), those cases
are distinguishable. The Supreme Court in In re K.A.F. was addressing a parent’s failure
to timely file a notice of appeal, which was required to invoke the appellate court’s
jurisdiction. 160 S.W.3d at 928. In re B.L.D. involved the failure to preserve a complaint
on jury charge error in a parental termination case. 113 S.W.3d at 350. The Supreme
Court explained that the rationale behind preservation rules is to conserve “judicial
12
resources by giving trial courts an opportunity to correct an error before an appeal
proceeds and to “promote fairness among litigants.” Id.
In the underlying case, on the first day of the trial on the merits, B.T. asked if she
could “get an attorney. I need a court-appointed one, if you can.” Magic words were not
required to bring the matter to the trial court’s attention to preserve error for appellate
review. Sand Point Ranch, Ltd. v. Smith, 363 S.W.3d 268, 274 n.11 (Tex. App.—Corpus
Christi 2012, no pet.). After a two-week recess, the trial court asked B.T. if she wanted
an attorney “only if an extension [was] granted?” B.T. replied, “I need one regardless. I
would like one.” The record shows that B.T. made her complaint known to the trial court
and that the trial court ruled adversely to her. See TEX. R. APP. P. 33.1(a)(1). B.T.
provided the trial court with two opportunities to correct the decision to deny her appointed
counsel thereby satisfying the rationale expressed in In re B.L.D.
Relying on In re S.M.T., No. 13-17-00064-CV, 2017 Tex. App. LEXIS 6795, at *33
(Tex. App.—Corpus Christi July 20, 2017, no pet.) (mem. op.), and Medley v. State, 47
S.W.3d 17, 23 (Tex. App.—Amarillo 2000, pet. ref’d), the Department advances another
argument in support of its position that B.T. waived her right to counsel. In Medley, this
court recognized that a waiver of counsel could ordinarily be withdrawn and the right to
counsel reasserted and granted if it did not (1) interfere with the orderly administration of
the business of the court, (2) result in unnecessary delay or inconvenience to witnesses,
or (3) prejudice the State. 47 S.W.3d at 24. The parent in In re S.M.T. specifically waived
his right to counsel at a hearing even though he had previously filed an affidavit of
indigence. 2017 Tex. App. LEXIS 6795, at *33. In that case, he insisted on representing
himself even after being admonished by the trial court about his right against self-
13
incrimination. When the parent later asked for counsel because he did not understand
his legal rights, the trial court denied his request. Id. at *35. Citing Medley, the court in
In re S.M.T., found the parent had failed to meet his burden to show that appointment of
counsel would not cause delay or prejudice. Id. at *37.
We reject the Department’s arguments that B.T. waived her right to counsel. To
equate the circumstances in In re S.M.T. and Medley with the facts in the underlying case
is insincere. B.T. first sought and was granted appointed counsel in November 2017.
The presumption of her indigence continued even though she retained counsel for a brief
period. After repeated denials of her requests for court-appointed counsel, she sought
continuances to retain new counsel. Any unnecessary delay in the proceedings was not
attributable to B.T.; rather, the delay was due to the trial court’s repeated refusals to
provide B.T. with appointed counsel.
Denial of the right to counsel under section 107.013(a) is reversible error. See In
re E.A.F., 424 S.W.3d 742, 747 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); In
re J.M., 361 S.W.3d 734, 738-39 (Tex. App.—Amarillo 2012, no pet.); In re C.D.S., 172
S.W.3d 179, 186 (Tex. App.—Fort Worth 2005, no pet.). See also In re M.P., No. 02-18-
00361-CV, 2019 Tex. App. LEXIS 904, at *4 (Tex. App.—Fort Worth Feb. 7, 2019, no
pet.) (mem. op.) (finding reversible error in proceeding to trial without first considering a
parent’s affidavit of indigence even after the Department conceded that upon the parent’s
filing of an affidavit of indigence, the trial court should have addressed it prior to
proceeding with the trial on the merits). There are two requirements for a parent to be
entitled to appointed counsel under the statute, both of which B.T. satisfied. First, the
parent must be indigent. It is undisputed that B.T. had been declared indigent by the
14
former associate judge when termination proceedings were initiated in 2017. The
associate judge who presided at the trial on the merits was also aware of B.T.’s indigent
status. B.T.’s presumption of indigence went unchallenged and thus, remained intact
throughout the proceedings. That she temporarily was represented by retained counsel
did not alter her status. See In re M.H., 02-18-00329-CV, 2019 Tex. App. LEXIS 2231,
at *4-6 (Tex. App.—Fort Worth March 21, 2019, no pet.) (mem. op.). In In re M.H., an
indigent parent had retained and then fired an attorney to represent him in a termination
proceeding. At the permanency hearing, the parent appeared pro se and the trial court
inquired on the status of his legal representation. When asked if he was asking for a
court-appointed attorney, he answered, “[n]o” but then responded, “[f]or today, Your
Honor, you can let me have one.” The trial court did not appoint an attorney and the
parent represented himself to the conclusion of the proceedings which resulted in
termination of his parental rights. Id. at *3-4. The Fort Worth Court concluded that it was
the trial court’s responsibility, not the pro se litigant’s, to clarify any ambiguity on
representation before proceeding with the trial and held “the trial court reversibly erred by
failing to . . . have an attorney appointed to represent [the parent] during the termination
hearing.” Id. at *6.
Second, the parent must oppose the Department’s petition. B.T. demonstrated
her resistance to the termination proceedings. She zealously represented herself despite
her unambiguous and repeated requests for appointed counsel. The two instances in
which she did not appear at trial were due to medical issues that required hospitalization—
a matter also uncontested by the Department. The proceedings continued without her
presence and without an advocate to defend her parental rights.
15
The Department argues that the denial of counsel at the trial on the merits did not
harm B.T. because she was subsequently appointed counsel for the de novo hearing.
We find the subsequent appointment of counsel to be “too little, too late” because the
referring court, in its de novo review, announced that it was considering the record from
the trial on the merits before the associate judge. In doing so, it expressly indicated that
it was considering evidence developed during a part of the proceeding where B.T.’s right
to counsel was violated and where the Department’s evidence was not subjected to the
rigors of cross-examination in an adversarial process.
The Department’s argument that the child’s need for permanence through an
expedited process was paramount was rendered meaningless when the prolonged delay
in appointing counsel exacerbated the delay in the proceedings. More than a year after
B.T. first requested counsel, the referring court finally appointed counsel for the de novo
hearing, which unlike the trial on the merits, was limited in scope by statute. The
appointment of counsel occurred only after the de novo hearing had already commenced.
Commencing the de novo hearing anew with B.T. having court-appointed counsel did not
cure the error caused by the trial court in denying B.T. appointed counsel for the entire
trial on the merits—a critical stage of the termination proceedings. In fact, the referring
court’s announcement that it had read and would be considering the cold record from the
trial on the merits compounded the error. The evidence from the trial on the merits was
not subjected to effective cross-examination putting in issue its reliability as support for
permanently severing the parent-child relationship.
The heightened standard of review that applies to termination proceedings is
rendered meaningless when a parent is left without legal representation at a critical stage
16
of the proceedings. A delayed appointment of counsel for an indigent parent who
opposes a government-initiated termination and requests counsel may “render the
ultimate appointment a toothless exercise.” In re V.L.B., 445 S.W.3d at 807. As such,
we find the trial court’s denial of court-appointed counsel to represent B.T. during the trial
on the merits constitutes reversible error.
Generally, finding error requires a harm analysis under Rule 44.1(a)(1). TEX. R.
APP. P. 44.1(a)(1). See also In re E.A.G., 373 S.W.3d 129, 144 (Tex. App.—San Antonio
2012, pet. denied) (applying Rule 44.1(a) to a trial court’s erroneous ruling on admission
of expert testimony); In re S.P., 168 S.W.3d 197, 210 (Tex. App.—Dallas 2005, no pet.)
(finding that an erroneous evidentiary ruling caused the rendition of an improper
judgment). However, a violation of the statutory scheme mandated by section 107.013(a)
of the Family Code presumes that a parent was prejudiced. See In re A.J., 559 S.W.3d
713, 722 (Tex. App.—Tyler 2018, no pet.) (citation omitted). Therefore, this court need
not conduct a harm analysis under Rule 44.1(a). Issue two is sustained. Our disposition
pretermits consideration of issue one. TEX. R. APP. P. 47.1.
CONCLUSION
The trial court’s Order of Termination is reversed and the cause is remanded to
the trial court for further proceedings. Any retrial of this case must commence no later
than 180 days after this court issues mandate. TEX. R. APP. P. 28.4(c).
Patrick A. Pirtle
Justice
17